Valero Holdings Pty Limited v The Owners - Strata Plan No 33531 [2014] NSWCATCD 34

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Valero Holdings Pty Limited v The Owners - Strata Plan No 33531 [2014] NSWCATCD 34 Decision date: 26 March 2014 Jurisdiction: Consumer and Commercial Division Before: K Rosser, Senior Member Decision: Costs 1. The applicant shall pay the respondent's costs of the proceedings on a party party basis as agreed or assessed. Catchwords: Costs; Unheard proceedings Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Strata Schemes Management Act (NSW) 1996 Cases Cited: Owners Corporation of Strata Plan No 4521 v Zouk [2007] NSWCA 23 Category: Costs Parties: Valero Holdings (applicant) The Owners – Strata Plan No 33531 Representation: Makinson d'Apice Lawyers (applicant) Grace Lawyers (respondent) File Number(s): SCS 13/30043

reasons for decision

Background 1.The respondent seeks costs in relation to the substantive application which was heard and determined on 12 February 2014. That application was determined on the same day as the hearing. The parties were notified of the orders the Tribunal made on 12 February 2013 by a notice of order dated 17 February 2014. Reasons for decision, which were originally dated 12 February 2014, were attached to the notice of order. While the Registry changed the date on the reasons for decision from 12 February 2014 to 17 February 2014 prior to dispatching the notice and attached reasons, the notice of order confirms the date on which the orders were made. 2.At the hearing of the substantive application, the parties agreed that if the issue of costs could not be settled, it could be determined without a hearing. The respondent was directed to file and serve a submission on costs by 26 February 2014. A submission was filed on that day. The applicant was directed to file and serve a submission on costs by 12 March 2014. No submission on costs has been received from the applicant. 3.I note from the file that on 13 February 2014 the applicant's solicitor wrote to the Registrar seeking orders granting leave to the applicant to file written submissions in relation to a substantive issue in the proceedings. On 18 February 2014 the applicant's solicitor again wrote to the Registrar, on this occasion advising that she had been instructed to withdraw the proceedings. The orders sought on that occasion included an order that the applicant pay the respondent's costs of the proceedings as agreed or assessed. 4.Both of these letters were received after the orders had been made on 12 February 2014 and neither was brought to my attention until after the decision was published on 17 February 2014. I note that the applicant's solicitor again wrote to the Registrar on 7 March 2014 and that a response to that letter was dispatched on 14 March 2014.

Submissions 5.As noted above, a submission on costs has been received from the respondent in the substantive proceedings only. That submission has been considered in determining the issue.

Jurisdiction 6.The proceedings to which this application for costs relates were commenced in the former Consumer Trader and Tenancy Tribunal [CTTT] in May 2013. As at 1 January 2014, the proceedings were unheard proceedings in accordance with Clause 7 of Schedule 1 of the Civil and Administrative Tribunal Act (NSW) 2013. Pursuant to Clause 7(3)(a) of Schedule 1, the Civil and Administrative Tribunal has and may exercise all the functions that the CTTT had immediately before its abolition. Clause 7(3)(b) states that in relation to unheard proceedings "the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply". 7.I am satisfied that the application for costs does not constitute separate proceedings to the proceedings which constitute the substantive application. I therefore find that s 192 of the Strata Schemes Management Act (NSW) 1996 continues to apply to these proceedings. This section (now repealed) gave the Tribunal power to make an order for costs if an application was dismissed because it was frivolous, vexatious, misconceived or lacking in substance.

Issues 8.The issue to be determined in this matter is whether the application was frivolous, vexatious, misconceived or lacking in substance.

Findings and reasons 9.The substantive application was dismissed because the valuation certificate filed by the applicant in support of the application did not comply with s 183(4) of the Strata Schemes Management Act in that it did not specify the valuation as at the relevant date of each of the lots to which the application relates. On this basis I found that the application was fundamentally flawed and could not succeed. 10.The Tribunal is not required to make a finding that an application is frivolous, vexatious, misconceived or lacking in substance at the time the decision is made as long as a subsequent finding that the application falls within one of those categories is consistent with the Tribunal's earlier findings. (See The Owners Corporation of Strata Plan No 4521 v Zouk [2007] NSWCA 23 at [38]) 11.I am satisfied that the application was misconceived because it was based on a valuation certificate that failed to value the lots as at the date required by s 183(4) of the Strata Schemes Management Act. The applicant could not have succeeded on the basis of that valuation certificate and the application was based on a flawed understanding of the requirements of s 183(4).

Conclusion 12.In summary, I am satisfied that the substantive proceedings were dismissed because the application was misconceived. In such circumstances the respondent has established the basis for an order for costs in its favour. I am satisfied that such an order should be made on the usual basis. K Rosser Senior Member Civil and Administrative Tribunal of New South Wales 26 March 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2014